The warrant of attachment in this case was granted upon the affidavit of the plaintiff, and the motion to vacate the attachment is. made by a junior creditor, without any papers except a stipulation that he has a lien by attachment upon the same property, as that upon which the. attachment is granted in this action. The sole ground upon which the warrant was vacated was, that the affidavit upon which it was granted was not sufficient.
In form the affidavit is all that could be desired. It states the facts which are required by the statute to entitle the plaintiff to the relief which he asks. It says that the defendant is a foreign corporation, having its office and principal place of business in Chicago in the State of Illinois; that before the 14th of May, 1896,. at Chicago, the Xew York Standard Watch Company; through its. agent, sold to the defendant certain goods which were, on the 14th day of May, 1896, delivered at Jersey City to the defendant;, that, the goods were sold .at the agreed and reasonable price of $214, which the defendant promised to pay, and that no part thereof has: been paid, although demanded. The affidavit further states that the cause of action was assigned to the plaintiff.
The criticism upon this affidavit,- and the ground upon which it; has been held to be defective, is that, although the facts contained.in-it are stated positively by the plaintiff, yet his grounds of knowledge are not stated, and it does not appear from what he says that he did. have personal knowledge of the facts out of which grew the cause of action which lies at the foundation of his right to an attachment.It is to be noticed that there is nothing to contradict or disprove the-*590allegations’, contained in the affidavit, and the question raised, therefore, is simply a technical one, Avhether it will he assumed, where a fact is stated as of the personal knowledge of the affiant, that such fact does'not exist because the- affiant .has not, in addition to stating the facts, stated other facts from which it could be made to appear that he must have known that whereof he spoke. The rule of law has always, been, with regard to .the testimony of witnesses, that, when one stated a fact as of his personal knowledge, it would be presumed that he had such knowledge, unless it. appeared presumptively or by fair inference that he could not have had it, and that the allegations were not made upon it. Such was the rule laid down in Crowns v. Vail (51 Hun, 204), in the case of an attachment, This has' always been the rule applied in the' interpretation of testimony. It'has been applied in this court in the case of Ladenburg v. Cormnereial Bank (5 App. Div. 219), and still mofe recently in Hanson v. Marcus (8 id. 318).
The case of Ladenburg v. Commercial Bank (supra) is precisely in point .oh this question. The action was brought upon certain drafts which had been made by the defendant, a foreign corporation, payable in London,'arid which had been presented at' the bank in. London where they were payable for acceptance,, had not been accepted, aiid were protested for non-acceptance. It was necessary in that case! for the plaintiff to slum as a part of his cause of action that' the" drafts had been presented for acceptance, that acceptance had been ref used,, and that they had thereupon been protested. It was conceded that those things, if they occurred, must have occurred in the city of London ; and it also was conceded that the plaintiff, Upon Whose! affidavit alone the attachment was .granted, had not been in the' city ¡of London,' and, therefore, could not have been present when the falcts which lie testified to. occurred: Upon that state of facts the coiirt below refused. to vacate the attachment: Upon an appeal taken to this Court it Avas strenuously insisted that the plaintiff Could not have had knowledge of the facts Which'were stated in his affidavit, and that, therefore, it was error to llaAm permitted the attachment to. stand. The court said :Knowledge such' as the law requires in affidavits of the' present description is not necessarily personal óbsérvjation of the affiant plaintiff: That the bills óf" exchange were drawn:in ¡Newfoundland and protested in London while the *591affiant was in Hew York — this is the sum and substance of the defendant’s attack upon the affiant’s statements. The affidavit was made May 20,1895, and the last of the bills was protested December 10, 1894. It was, therefore, quite possible that the bills, with the documentary evidence of protest, were in the possession of the affiant plaintiff when he made his affidavit, and in view of his assertion of knowledge we must assume such to be the case in the absence of evidence to the contrary. If he had these hills and notarial certificates of protest in his possession his assertion of knowledge was not unfounded. That was knowledge within the sense of the statute.”
The necessary effect of that decision is that an affidavit made as of the personal knowledge of the affiant is sufficient, unless it appears that he could not have had knowledge of the facts whereof he speaks; and that if the affiant could have had knowledge, derived in the ordinary course of business, of the truth of the thing which he testified to, it will be sufficient to sustain the attachment. There was no proof in that case that the plaintiff had the bills with notarial certificates of protest, nor was there anything to show that he knew anything more on the subject than that he had received telegraphic advices from London that acceptance of the bills had been refused and that they had been protested. But yet the court, for the purpose of sustaining the attachment, the plaintiff having testified positively to the facts, indulged in the presumption that he had the ordinary means of knowledge which would enable Mm to testify, not to what he saw done, but to the inferences which he might have drawn from the knowledge which he acquired, because he had in his hands evidence that the hills had been protested. That case was' decided by a unanimous court after much consideration. It is not an extreme application of the rule which was regarded as well settled, but it is the ordinary common-sense construction to be put upon an affidavit as to business matters when the facts alleged in them aré not disputed. The case was followed by this court in Hanson v. Marcus(8 App. Div. 318), where the affidavit was made by one who was the duly authorized agent of the plaintiff, and who stated as of his own knowledge the facts, constituting the cause of action, which appeared to have grown out of transactions between the defendants and the agent of the plaintiff. It did not appear, however, that *592the affiant was the agent. But the rule laid down in the Ladenbu/rg ease was applied,; that statements in affidavits will he presumed to have been made' upon personal knowledge, except when stated - to have been made upon information and belief, or where it appears affirmatively or by fair inference upon the face of the affidavit itself, that the statements could not have been made, and were not made, upon personal knowledge.
• How,'what appears in this case? The testimony of the plaintiff positive that a transaction took place in Chicago shortly-before the 14th of May, 1896. .He does not say whether or not he himself was in Chicago at the time. For aught that appears in this case, not, only may he have been there, but he. may have been the person who had the transaction which resulted in the sale of these .goods, to the defendant. It is not a violent, presumption that, men from Hew York go to Chicago and do business there for corporations doing business in this State, and it is a matter of every-day knowledge that men in Hew York do business each day by word of. mouth with-people in Chicago through the telephone,, one man being in Chicago and the other in Hew York. So that when a man living in Héw, York states as of his personal knowledge that something occurred in Chicago a few months before, it may fairly be-inferred that he states what he. knew, and, in the. absence of any testimony contradicting, it, his- affidavit ought to be .sufficient to warrant. the court in taking action- upon it. This is not an extension of the rule laid down in Ladenburg v. Commercial Bamh, but it is simply a fair application" of the ordinary common-sense rule, which is to be applied to business transactions. It is to be remembered that the necessary result of .that case is that personal knowledge is not required. Indeed, the opinion says so-. All that is required is that the affiant should have such information as- would enable him to establish the fact when called upon to prove it; and if he has that knowledge he need not state in his. -¡affidavit that he has any such knowledge — he did not state: it- in thé Ladenburg case — but it will be presumed that he did have it, and that he will be able to produce it upon the trial.
When this, affidavit was. presented to the court, jurisdiction to grant the warrant, was obtained (Ladenburg v. Com., Bank, supra), and it’ then became necessary, before the. attachment could be vacated,to disprove the facts thus positively testified to. Ho such evi*593dence was given, and for that reason it was error on the part of the court below to vacate the warrant. This action cannot he sustained unless we are prepared to overthrow the rule laid down in the cases of Ladenburg v; Commercial Bank and Hanson v. Marcus (supra).
The order of the Special Term should be reversed, with ten dollars costs and disbursements.
Order affirmed, with costs.